Abrams v. Legbandt
| Decision Date | 13 June 1974 |
| Docket Number | No. 2--1272A127,2--1272A127 |
| Citation | 312 N.E.2d 113,160 Ind.App. 379 |
| Parties | Allen ABRAMS et al., Appellants (Defendants below), v. Rolfe LEGBANDT, as Representative of the Residents of Timber Lane, Appellee(Plaintiff below). |
| Court | Indiana Appellate Court |
Frank E. Spencer, Indianapolis, Wayne J. Lennington, Charles R. Clark, William G. Bruns, Muncie, for appellants.
Jack Quirk, Municie, for appellee.
Defendants-Appellants Allen Abrams, Leonard Thomas, and Jack Isenbarger, Individually and as Members of the Board of Commissioners of the County of Delaware (Board of Commissioners), appeal from the granting of a permanent injunction prohibiting the enforcement of an ordinance it enacted which rezoned certain tracts of land in which Plaintiff-Appellee Rolfe Legbandt, and others (Legbandt), resided, who claims exclusive authority over planning and zoning rested with the Delaware-Muncie Metropolitan Plan Commission.
We reverse.
The parties stipulated the facts, the most pertinent of which are:
On August 17, 1972, McKinley, Inc. filed a Petition with the Delaware-Muncie Metropolitan Plan Commission (Plan Commission) to have certain real estate zoned from Residential R--3 to Commercial C--1. On September 7, 1972, the Plan Commission held a public hearing to consider the Petition for the change in zoning, and voted five to one against the Petition with one member abstaining.
On September 11, 1972, Legbandt appeared before the Board of Commissioners to protest McKinley, Inc.'s Petition for Rezoning and was informed that a public hearing would be held at a subsequent date to more fully consider the Petition.
On September 18, 1972, without further public hearing on the matter, the Board of Commissioners passed by a unanimous vote an amendment to the Zoning Ordinance, reclassifying the real estate in question from Residential R--3 to Commercial C--1.
On October 4, 1972, Legbandt filed a Complaint in the Delaware Circuit Court seeking Temporary and Permanent Injunction against the enforcement of the amendment to the Zoning Ordinance. Hearing on the Temporary Injunction, was held on October 31, 1972, which resulted in the granting of a Permanent Injunction against the Board from enforcing the amended Zoning Ordinance.
The only issue 1 necessary to our disposition of this case is:
Does the Metropolitan Plan Commission Act () grant the Plan Commission exclusive county-wide authority over planning and zoning, thereby depriving the Board of Commissioners of its power to legislate in the area of planning and zoning?
The Board of Commissioners contend that Ind.Ann.Stat. §§ 53--806, 53--807 grants to the Board of Commissioners all legislative power to enact zoning ordinances and limits the Metropolitan Plan Commission to acting in an advisory capacity only.
Legbandt interprets Ind.Ann.Stat. §§ 53--802 and 53--808a 2 as vesting in the Plan Commission exclusive county-wide authority and jurisdiction in all planning and zoning functions.
CONCLUSION--It is our opinion that the Metropolitan Planning Commission Act, § 53--801 et seq., does not grant to the Plan Commission exclusive county-wide authority over planning and zoning so as to deprive the Board of Commissioners of its power to legislate in the area of planning and zoning.
The essence of this controversy is whether the legislative power of the Board of Commissioners to enact or amend zoning ordinances has been terminated by statutory enactment so as to lodge that power in the Plan Commission. With no applicable Indiana case law to guide us, we turn to the pertinent legislative enactments.
The powers and duties of Boards of County Commissioners are set forth generally in IC 1971, 17--1--14--11, Ind.Ann.Stat. § 26--620 (Burns Supp.1973), the pertinent part of which is:
'26--620 (IC 17--1--14--11). Powers and duties.--Such commissioners in their respective counties shall have power at their meetings:
(1) To make orders respecting the property of the county in conformity to law . . .,
(4) To perform all other duties which may be enjoined on them by any law of this state.'
(1 R.S. 1852, ch. 20, § 13, p. 224; Acts 1935, ch. 7, § 1, p. 59; 1951, ch. 51, § 1, p. 123; 1971, P.L. 229, § 1, p. 909.)
Legislative authority to enact zoning ordinances is specifically bestowed upon Boards of County Commissioners by IC 1971, 18--7--5--58, Ind.Ann.Stat. § 53--756 (Burns Supp.1973):
'53--756. Certain powers of the city council or board of county commissioners.--As an integral part of the planning of areas so that adequate light, air, convenience of access, and safety from fire, flood and other danger may be secured; that congestion in the public streets may be lessened or avoided; that the public health, safety, comfort, morals, convenience and general public welfare may be promoted; and that the object of this legislation, as set out in section 1 (§ 53--701) of this act, may be further accomplished, the city council or the board of county commissioners shall have the following powers:
3. To regulate and determine the use and intensity of ue of land and lot areas.
4. To classify, regulate and restrict the location of trades, callings, industries, commercial enterprises and the location of buildings designed for specified uses.
5. To classify and designate the rural lands amongst agricultural, industrial, commercial, residential, and other uses and purposes.' (Emphasis supplied.)
(Acts 1947, ch. 174, § 56, p. 571; 1951, ch. 297, § 1, p. 983.)
See also, First Church of the Nazarene v. Weaver, (1972) Ind.App., 289 N.E.2d 155.
The Planning and Zoning Act of 1947, IC 1971, 18--7--5--1 et seq. Ind.Ann.Stat. & 53--701 et seq. (Burns Supp.1973), sets forth the powers and duties of County Plan Commissions and Boards of County Commissioners.
Sec. 53--701 authorizes Boards of County Commissioners to adopt an ordinance creating County Plan Commissions, which then serve in an 'advisory capacity to presently established boards.'
'In accomplishing this objective, it is the intent of this legislation that the plan commission shall serve in an advisory capacity to presently established boards and officials . . .' (Emphasis supplied.)
(Acts 1947, ch. 174, § 1, p. 571; 1963, ch. 125, § 1, p. 111.)
Part of the same Act is IC 1971, 18--7--5--28, Ind.Ann.Stat. § 53--728 (Burns Supp.1973) which specifically enumerates the powers and duties of the County Plan Commission:
'53--728. Powers and duties of plan commissions.--To effectuate the purposes of this act (§§ 53--701--53--795), the commission shall have the power and duty to:
(Our emphasis.)
(Acts 1947, ch. 174, § 28, p. 571.)
So neither § 53--701 or § 53--728 derogates from the legislative authority of the Board of Commissioners to enact or amend zoning ordinances.
Another section of the Planning and Zoning Act of 1947 is IC 1971, 18--7--5--67, Ind.Ann.Stat. § 53--765 (Burns Supp.1973) which contemplates 'final action' to be taken by Boards of County Commissioners when it becomes necessary to amend, supplement, or repeal existing zoning regulations within the Master Plan:
'Prior to the submission to the city council or the board of county commissioners of a plan commission petition or a report on a proposed ordinance referred to it for an amendment, supplement, change or repeal of the zoning ordinance the plan commission shall give notice and hold a public hearing in the manner prescribed for adoption of a master plan in section 37 (§ 53--737) of this act.
'In the event the report of the plan commission is adverse to a proposed ordinance referred to it, the ordinance shall not be passed except by an affirmative vote of at least seventy-five per centum (75%) of the members of the city council or a unanimous affirmative vote of the board of county commissioners.' (Our emphasis.)
(Acts 1947, ch. 174, § 64, p. 571; 1961, ch. 133, § 1, p. 288.)
This section (53--765) reaffirms the legislative authority of Boards of County Commissioners and specifically restricts Plan Commissions to investigations, recommendations and reporting. The cases have so interpreted 53--765:
Antrim v. Hohlt, (1952) 122 Ind.App. 681, at 687, 108 N.E.2d 197, at 199.
See also: Houser v. Board of Commissioners, (1969) 252 Ind. 301, 247 N.E.2d 670; Krimendahl v. Common Council of Noblesville, (1971) 256 Ind. 191, 267 N.E.2d 547.
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